Medical interventions are legal transactions specifically structured and bound to strict conditions by the legal system, as they are directly related to individuals’ right to life and bodily integrity. With the rapid developments in contemporary medical technology and the increase in access to healthcare services, the liabilities of physicians arising from their practices in diagnosis, treatment, and care processes have become one of the most dynamic topics in the discipline of law.
1-) Concept of Medical Intervention and Conditions of Lawfulness
Medical intervention refers to any physical or psychological activity carried out by authorized healthcare personnel (a physician or a healthcare professional under the supervision of a physician) using principles and methods accepted by medical science for the purpose of protecting the patient’s physical or mental health, establishing a diagnosis, treating, or alleviating their pain. In the face of the right to personal inviolability and bodily integrity guaranteed by the Constitution, a physician’s intervention in the patient’s body under normal circumstances constitutes an unlawful act. However, in the presence of certain conditions, medical intervention is deemed lawful:
- Authorization of the Person Performing the Intervention: The intervention must be performed by a physician legally holding a diploma and specialization authorized in terms of medical science.
- Diagnostic and Therapeutic Purpose: The intervention must be directly aimed at restoring the patient’s health, improving their quality of life, or establishing a diagnosis.
- Compliance with the Standards of Medical Science: The applied treatment method must comply with the current and generally accepted principles and rules achieved by medical science.
- Informed Consent: It is essential that the patient’s consent be obtained with their free will after adequate disclosure has been made regarding the procedure to be performed, potential risks, and consequences.
2-) Legal Nature of the Relationship Between Patient and Physician
In the Turkish legal system, there is no specific statutory provision gathering the legal basis of medical interventions under a single roof. In resolving disputes, the legal nature of the relationship between the parties is determined based on the established precedents of the Court of Cassation and the general provisions of the Turkish Code of Obligations (TCO). The nature of the legal relationship is the most fundamental element determining the scope of the obligation undertaken by the physician and the degree of liability.
2.1-) Mandate Contract Relationship (TCO Art. 502 et seq.)
As a rule, the treatment relationship between physician and patient is of the nature of a mandate contract. In therapeutic medical interventions, the physician cannot guarantee the cure of the patient or the achievement of a definitive healing outcome. Due to the complex structure of the human organism and the differing response of each constitution to treatment, the physician acting as an agent (mandatary) is solely under the obligation to conduct careful treatment in accordance with the rules of medical science and professional standards. Provided that the physician acts like a competent agent and exercises all the care and attention required by medical science, even if the patient does not recover, the physician cannot be held liable for the adverse outcome merely on the grounds that the result was not achieved.
2.2-) Contract for Work Relationship (TCO Art. 470 et seq.)
According to the established decisions of the Court of Cassation, in cases where the physician undertakes a concrete and specific result as a consequence of the medical intervention, the relationship between the parties is characterized as a contract for work. Particularly in cosmetic surgeries, prosthesis manufacturing, hair transplantation, and dental prosthesis procedures, the physician promises the patient a specific physical appearance or a concrete result. In a contract for work, the contractor (physician) is obligated to produce the undertaken work in accordance with the contract and the patient’s expectations. Pursuant to TCO Art. 471/2, in determining the liability arising from the physician’s duty of care, conduct complying with the professional and technical rules that a competent contractor undertaking similar work would exhibit is taken as the basis. Therefore, in cosmetic interventions, the physician must not only exercise due care but also achieve the promised result.
2.3-) Other Forms of Legal Relationships
The relationship between physicians working in private hospitals and the hospital is evaluated as a service contract (employment contract); interventions performed without consent in emergency situations where the patient is unconscious as management of affairs without a mandate (TCO Art. 526 et seq.); and damages occurring in circumstances where there is no contractual bond between the physician and the patient under the provisions of tort (TCO Art. 49 et seq.). In medical interventions taking place in public hospitals, the public administration’s liability for “service fault” (faute de service) arises pursuant to administrative law principles.
3-) Conditions of the Physician’s Legal Liability and Duty of Care
For the physician’s compensation liability to arise due to medical malpractice, four fundamental elements under the law of obligations must occur concurrently: an unlawful act, fault, damage, and a causal link (causation).
3.1-) Physician’s Duty of Care and Medical Standard
The physician is obligated to utilize their professional knowledge and experience in the most appropriate manner for the benefit of the patient at every stage of diagnosis, treatment, and surgery. The care expected from the physician is not that of an average citizen, but the professional standard that a specialist physician in the same field of expertise should display. Failing to perform necessary tests and examinations while establishing a medical diagnosis, administering the wrong medication or dosage, leaving a foreign body in the patient’s body during surgery, or neglecting the post-operative monitoring obligation constitutes a breach of the physician’s duty of care. The physician is liable for even the slightest fault required by their profession.
3.2-) Informed Consent Obligation
Pursuant to Articles 24 and 26 of the Patient Rights Regulation and Article 26 of the TMA (Turkish Medical Association) Medical Professional Ethics Rules, the physician is obligated to fully inform the patient about the diagnostic and treatment methods to be performed, the probable risks of the intervention, potential complications that may arise, treatment alternatives, and the consequences that may occur in case of refusal of treatment. Disclosure is a process that must be conducted in a language the patient can comprehend and where the patient is granted time to deliberate. According to the established precedents of the Court of Cassation, medical interventions performed without valid informed consent are deemed unlawful, regardless of how medically successful the operation is, and the physician is held liable for all damages arising.
4-) Distinction Between Acceptable Risk and Medical Malpractice, and the Burden of Proof
The most critical and decisive issue in medical malpractice lawsuits is determining whether the adverse outcome that occurred is “medical malpractice” or an “acceptable risk”.
- Acceptable Risk: These are adverse outcomes that may arise due to the inherent nature of the medical intervention and cannot be prevented even if foreseeable, despite the physician and the medical team fully complying with all rules and standards of medical science and exercising all required care and attention. Provided that the patient was informed in advance about these risks and their written consent was obtained, and additionally that the physician managed the situation properly and timely when the complication arose (complication management), no legal liability can be attributed to the physician.
- Medical Malpractice: Acting contrary to medical standards due to ineptitude, lack of knowledge, inexperience, indifference, or lack of care during the practice of the medical profession, thereby causing physical or psychological harm to the patient. In case of medical malpractice, the compensation liability of the physician and the relevant healthcare institution arises.
- Nature of the Act: While medical malpractice refers to culpable conduct contrary to medical standards (lege artis), duty of care, and attention; complication encompasses interventions carried out in full compliance with medical standards and rules.
- Preventability: The harmful outcome occurring in medical malpractice is preventable if the required care and attention are exercised. In a complication, however, it is medically impossible to prevent the situation despite all precautions taken.
- Physician’s Liability: In the case of malpractice, the physician is liable to pay material and moral compensation in proportion to the fault committed. In the case of a complication, if the patient was informed and the developing process was medically managed properly (complication management was provided), the physician bears no legal liability.
- Burden of Proof: In an allegation of medical malpractice, the burden of proving the physician’s medical fault, the resulting damage, and the causal link between them belongs to the plaintiff patient. In a complication, the burden of proving that the patient was informed in advance and that the occurring event was a complication belongs to the physician.
5-) Types of Compensation That May Be Claimed as a Result of Medical Malpractice
The material and moral compensation items that persons (or their relatives) who suffer bodily harm or lose their lives due to medical malpractice may claim under the Turkish Code of Obligations are as follows:
- Material Compensation in Case of Bodily Harm (TCO Art. 54): Treatment and rehabilitation expenses, loss of earnings, losses arising from the reduction or loss of working capacity, and damages arising from the disruption of the economic future.
- Material Compensation in Case of Death (TCO Art. 53): Funeral expenses, treatment expenses if death did not occur immediately, losses arising from the reduction of working capacity, and compensation for deprivation of support suffered by persons deprived of the deceased’s support.
- Moral Compensation (TCO Art. 56): The amount of moral compensation to be determined by the judge in order to offset the physical pain, suffering, emotional distress, and psychological devastation experienced by the patient as a result of the medical error. In cases of severe bodily harm or death, relatives of the injured party or the deceased may also claim moral compensation.
6-) Competent Court and Legal Procedure in Medical Malpractice Lawsuits
Determining the competent court in compensation lawsuits to be filed with an allegation of medical error or breach varies according to the legal status of the healthcare institution where the intervention took place:
- Lawsuits to be Filed Against Private Hospitals and Independent Physicians: If the healthcare service is obtained from a private hospital, a medical center, or an independent physician consulted in their private practice, the relationship between the patient and physician/hospital is evaluated within the scope of the Law on the Protection of Consumers. Accordingly, Consumer Courts have jurisdiction in material and moral compensation lawsuits to be filed. Exhausting the mandatory mediation process as a cause of action (condition precedent to filing a lawsuit) prior to filing these lawsuits is a legal requirement.
- Lawsuits to be Filed Against State, University, and Public Hospitals: If the intervention takes place in a public-affiliated hospital or a university hospital, service fault arising from the execution of public service is in question. In such cases, the lawsuit is filed not directly against the physician, but against the relevant public entity (Ministry of Health or University Rectorship) before Administrative Courts in the form of a “Full Remedy Action” (Tam Yargı Davası). Prior to filing a lawsuit in administrative jurisdiction, submitting a mandatory administrative application to the relevant institution and complying with strict statutory limitation periods determined by law is mandatory.
- In Terms of Criminal Liability: For the criminal liability of healthcare personnel arising from offenses such as reckless injury or reckless killing, the process begins with a criminal complaint submitted to the Chief Public Prosecutor’s Office, and the proceedings are conducted in the Criminal Courts of First Instance (Asliye Ceza Mahkemeleri) or Assize Courts (Ağır Ceza Mahkemeleri).
Frequently Asked Questions (FAQ)
Q1) Is the physician liable if the desired outcome is not achieved following cosmetic surgery?
A1) Yes. Pursuant to Court of Cassation precedents, cosmetic interventions are subject to the provisions of a contract for work. Because the physician makes a specific undertaking, in outcomes that do not meet expectations or are defective, the physician is held liable for compensation on grounds of failing to produce the undertaken work.
Q2) Does merely having the patient sign a standard printed form relieve the doctor of liability?
A2) No, it does not. According to the established precedents of the Court of Cassation, standard printed consent forms that are not personalized to the patient’s specific condition and do not contain concrete risks are not considered legally valid disclosure. The essential element is that disclosure be made orally and in a language the patient can understand by the physician personally, and forms are merely evidentiary tools demonstrating that this process was conducted. Therefore, the obligation to prove that the risks of the operation were fully explained to the patient rests entirely with the physician.
Q3) Does no liability arise for the physician if an acceptable risk develops during the intervention?
A3) The development of an acceptable risk does not alone relieve the physician of liability. The physician is obligated to timely diagnose the developing complication, intervene correctly, and manage the process properly (complication management). Failure to notice or mismanaging the complication turns into malpractice and gives rise to the liability of the physician.
Q4) Which court has jurisdiction in medical malpractice lawsuits?
A4) In lawsuits to be filed against private physicians and private hospitals, Consumer Courts have jurisdiction based on a mandate contract or contract for work. Against public and university hospitals, on the other hand, a full remedy action must be filed before Administrative Courts on grounds of service fault.
COURT OF CASSATION 3RD CIVIL CHAMBER, Docket No. 2025/1347, Decision No. 2025/4009
“…that administering the medication named methotrexate without adequate monitoring and follow-up and without considering the possibility of a pregnancy was not medically appropriate; indeed, it was understood that a 5-week gestational sac was present in the USG examination performed on 12.04.2012; that the actions of the defendant doctor did not comply with the principles and rules of medical science; although the opinion that the hospital was not liable was stated in the report of the Forensic Medicine Institute (ATK), on the grounds that it is obligated to indemnify the damage caused to another/its patient pursuant to the provision of ‘liability of employer’ set forth in Article 66 of the Turkish Code of Obligations No. 6098; with the partial acceptance of the lawsuit, the collection of 200,000.00 TL in moral damages for the plaintiff … and 75,000.00 TL for the defendant … from the defendants together with legal interest to accrue from the date of the incident…”
COURT OF CASSATION 12TH CRIMINAL CHAMBER, Docket No. 2014/9296, Decision No. 2015/5790
“…While it is acknowledged that if death occurs when a correct diagnosis has been established and appropriate treatment initiated, the death would be evaluated as a complication, and that there is no guarantee of cure in any medical intervention; in the event that a causal link exists between the occurring death and the deficiency in treatment and diagnosis, this must be evaluated not as a complication but as malpractice… that the determination indicating it was not certain that the baby would survive does not alter the fact of malpractice and cannot be accepted as an evaluation preventing the defendant from being held liable for the occurring death…”
COURT OF CASSATION 13TH CIVIL CHAMBER, Docket No. 2016/27901, Decision No. 2019/5767
“The plaintiff claimed compensation on the grounds that … after the physical therapy procedure, their heel was burned, … a tissue graft was performed, … the defendant doctor recommended the wrong treatment, and the defendant [healthcare personnel] administered the treatment incorrectly; … The lawsuit relates to a claim for material and moral compensation filed due to medical malpractice. … Although the court ruled for … acceptance, stating that the defendants are liable for the treatment expenses calculated by the expert, … it is not clear how the amount specified in the decision was determined. While the court should have obtained a report from an expert specialized in the field and rendered a decision according to its outcome, rendering a decision in writing based on an incomplete examination is contrary to procedural rules and the law, requiring reversal. On the other hand, when the occurrence of the concrete event and the evidence in the case file are evaluated together, the awarded amount of moral compensation is also low. While the judgment should have been rendered by reasonably increasing the moral compensation, rendering the judgment in the specified manner was inappropriate, requiring reversal. … For the reasons explained in items 1 and 2 above, it was unanimously decided on 06/05/2019 that the judgment be REVERSED…”
COURT OF CASSATION 6TH CIVIL CHAMBER, Docket No. 2024/2425, Decision No. 2025/3957
“Article 112/1 of the Turkish Code of Obligations No. 6098 contains the provision: ‘If an obligation is not performed at all or not performed properly, the debtor is obligated to compensate the creditor’s damage arising therefrom, unless they prove that no fault can be attributed to them.’ […] Considering the findings in the report, the defendant who did not perform their work in accordance with science and technique by exercising the necessary care is at fault and is obligated to compensate the arising damages pursuant to Article 112 of the TCO.”
COURT OF CASSATION 15TH CIVIL CHAMBER, Docket No. 2019/2716, Decision No. 2019/3692
“…It was agreed between the parties that aesthetic/cosmetic interventions would be performed on the plaintiff. Pursuant to Article 355 of the TCO regulating the contract for work, the contractor’s performance is to undertake producing a work, and the employer’s performance is to undertake paying a fee in return. Due to the nature of the contract for work, the contractor guarantees the result. In complications, on the other hand, the duty of disclosure and the correct execution of complication management are likewise the liability of the contractor (physician)…”